Right To Work Appeal

Whilst "illegality" might be a fair reason for dismissal under the Employment Rights Act 1996, this is a cautionary tale and should remind everyone that they still need to follow a fair process.

The EAT has recently found that an employee, dismissed for failing to properly evidence his continued right to work, should have been given the opportunity to appeal his dismissal.

Mr Afzal was entitled to work in the UK but only for a certain period. To continue to work after that, he needed to apply for a further document prior to the expiry of the initial time limit. As long as he made the application in time, however, he could continue working whilst his application was being processed. Mr Afzal sent his employer an email on the day of the deadline, purporting to attach evidence of his application. Unfortunately, his employer could not open the attachments and dismissed him, conscious of the civil and criminal penalties for employing those without a right to work. Mr Afzal was not given a right to appeal that decision.

The EAT found that an appeal should have been permitted as it could have enabled the employer to discover that, whilst the belief Mr Afzal's right to work had expired was genuine, it was also mistaken. The application had in fact been made in time and Mr Afzal therefore did have a continued right to work. Had an appeal taken place and evidence been obtained, the employer could have reinstated Mr Afzal with no risk of any penalty being imposed. The case was therefore remitted back to the Tribunal to decide whether the dismissal was unfair.